They should forbid clients from using their negotiations in UDRPs and lawsuits.
Many skilled domain brokers help companies acquire domain names. When negotiations fail to result in a transaction, clients sometimes use the broker’s effort in an ensuing UDRP or lawsuit.
That was the case in a dispute for Voxan.com last year. Gildo Pallanca-Pastor, the CEO of Venturi Automobiles, filed a dispute against domain name investor VirtualPoint. The panel found it was a case of reverse domain name hijacking.
Venturi initially used a French firm called Solidnames to try to acquire the domain name. The broker in that case has now told VirtualPoint that it didn’t realize the client would turn around and file a UDRP. He wrote in an email: “Following the failure of negotiations, the end client changed strategy with his lawyer.”
Domain buyer brokers should avoid having their name thrown into a UDRP. Bill Sweetman of Name Ninja explained in a podcast last year that his company’s terms forbid clients from using any of his firm’s negotiations/communications in a UDRP or lawsuit.
As for Venturi, it has tasked Solidnames with trying to acquire Voxan.com again. I suspect it’s going to need to offer a lot more money to buy the domain now than before it filed its abusive UDRP.
[Note: I mistyped the name of the brokerage firm in the initial post. I apologize for the error.]
John Berryhill says
This is a fairly common practice among some that hold themselves out as professional domain name acquirers.
The only brokerage of which I am aware that specifically states they will not provide registrant communications to the prospective buyer is Saw.com. If there are others, it would be good to have a list of brokerages which expressly include this in their terms.
Ethical brokerages that provide buyer agent services should make it clear that their ability to successfully acquire domain names requires that they not be seen as a stalking horse for legal claims.
Obviously, there are brokerages with whom domain registrants should not communicate with, since you do not know if they are trying to manipulate you into making statements that can be taken out of context and used as evidence against you for a claim of rights of which you had never heard or would have imagined.
Of course, you will always receive those emails from a Gmail account using a personal name who has no apparent presence on the internet, and what you say to anonymous strangers in the night is up to you.
billsweetman says
@ John Berryhill, Name Ninja’s proprietary domain buyer broker contract (prepared by a domain industry lawyer you would know of) includes many clauses that protect the domain owner, including a clause that prohibits our buyer clients from using the information we share with them in a legal dispute against the domain owner. We also have a clause that prohibits our buyer clients from disparaging the domain owner (e.g., calling them a “cybersquatter”). Finally, we never provide private communication we have with the domain owner with our buyer clients. Trust, integrity, and reputation our paramount to us. If we think a potential client is hoping to use us to covertly gather ‘evidence’ for a future legal claim, we won’t take on that client in the first place.
John Berryhill says
Good to know.
Jack says
What happens if your client uses in a legal dispute (UDRP or court) information you share with them despite signing the contract that prohibits them to do so ?
Do you sue them ??
John Berryhill says
Obviously, if there is a legal action of some kind, the customer can subpoena the communications.
What we are primarily talking about are situations where the broker simply acts as in a capacity of soliciting and providing their communications with the registrant to the customer for use against the registrant.
In the typical scenario, the complainant engages a broker to solicit a price from the domain registrant. The registrant quotes a price to the broker, identified only as [email protected]. That reply is used as evidence in a UDRP for the proposition that the registrant was trying to sell the domain name to the complainant. It is a lame tactic, since the registrant was replying to someone who didn’t identify themselves as working for the complainant in the first place, but it is used to bolster UDRP cases which don’t stand up on their own.
The overwhelming majority of UDRP cases are cut-and-dried cybersquatting involving well known marks since, obviously, obscure or geographically limited marks aren’t worth targeting for PPC traffic in the first place. Those sorts of cases, for which the UDRP was intended, don’t require a tremendous amount of effort or evidence for a complainant to prevail.
But if a UDRP complaint needs 150 pages of evidence, more than 5,000 words of argument, and a grab bag of inferences, then you are already off to a shaky start. Nonetheless, there are attorneys who believe it helps to make an anonymous solicitation and then use the reply as evidence that the registrant was targeting the complainant. And there are actors in the domain industry who are happy to help out.
Jack says
John,
That’s exactly what i was talking about.
I was responding to Bill.
His contract prohibits his buyer clients to use info he shares with them to be used in a legal dispute against the domain owner.
My question was : what do you do Bill if a buyer uses that info you shared in a legal dispute with the domain owner despite he signed your contract that prohibits him to do so ?
Do you sue your buyer client ??
billsweetman says
@ Jack, you’re welcome to contact me directly if you’d like to discuss this hypothetical and edge-case situation. I’m not going to discuss such a delicate matter here, especially with an unknown party.
Maggie says
Andrew, did you realize that right now Voxan.com resolves to this story on DNW?!
Andrew Allemann says
I didn’t realize that.